I was denied a BSIS exposed firearms permit based on a CA DOJ firearms clearance denial due to a 14 year old, expunged (1203.4), misdemeanor domestic violence conviction 273.5(PC).

I appealed the decision on the following basis:

I am not prohibited by California law because the conviction is over 10 years old. California Penal Code section 12021(c)(1) excerpt “within 10 years of the conviction”.
I am not prohibited by Federal law because the conviction has been lawfully expunged. Title 18 U.S.C. 921(a)(33)(B)(ii) excerpt. “Also, the law would not apply if the conviction has been expunged”.

DOJ upheld the denial based on a directive they received from ATF. Here http://ag.ca.gov/firearms/infobuls/0405.pdf is a link to the bulletin advising DOJ to uphold the denials however, I have been unable to get my hands on the directive issued by ATF therefore I do not know the basis for their opinion or how/why they are ignoring Title 18 U.S.C. 921(a)(33)(B)(ii).

Any help on this is appreciated. I am hearing that I am not the only one experiencing this.

edwardm

11-06-2007, 4:44 PM

In what manner was the 273.5 expunged, exactly? You're not assuming expungement via the 10+ year lapse, are you?

DazedandConfused

11-06-2007, 6:58 PM

In what manner was the 273.5 expunged, exactly? You're not assuming expungement via the 10+ year lapse, are you?

The 273.5 conviction was lawfully expunged by the Superior Court under 1203.4(PC).

I have heard it argued that the reasoning ATF is using to deny clearances to persons with prior 273.5 convictions over 10 years old is as follows (note that CA DOJ simply states they are following a directive from ATF to deny firearms clearances):

1203.4(PC) states in part, "Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 12021."

and

Title 18 U.S.C. 921(a)(33)(B)(ii) states in part, "unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

on the surface it looks as though 1203.4 expressly provides that a person many not ship, transport, possess, or receive firearms and therefore there is no relief under 921(a)(33)(B)(ii).

This is an incorrect interpretation of the law for the following reason:

It is clear that the California Legislature imposed a 10 year ban and not a lifetime ban (12021(c)(1) PC). It seems logical, correction obvious, to me that the intent of the legislature in 1203.4 was to circumvent possession of firearms before the 10 year prohibition that 12021 imposes has elapsed, thus the specific reference to 12021. Under California law it is the 10 year period of time that provides relief from the firearms prohibition under 12021 and not 1203.4. Since I am outside of the 10 year prohibition, 1203.4 does not apply to me with respect to possession of a firearm and therefore does not "expressly provide that I may not ship, transport, possess, or receive firearms". Therefore, 1203.4(PC) does not "expressly provide that a person may not ship, transport, possess, or receive firearms" after the 10 year prohibition has elapsed.

This needs to be challenged in court. NRA where are you?

Druac

11-06-2007, 7:01 PM

Yep...sounds like the only way you are going to be able to take care of that is to hire a lawyer.

Shotgun Man

11-06-2007, 7:13 PM

I did a little research on this for kicks. You seem to already know this, (and I hate to just delete my cut and pasting), so I'll post it anyway.

18 USC 922(g) states as follows (edited for brevity):

It shall be unlawful for any person--
[...]
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Title 18 U.S.C. 921(a)(33)(B)(ii) states that an expunged DV offense doesn't qualify as a misdemeanor crime of domestic violence:

(33) (A) Except as provided in subparagraph (C), the term "misdemeanor crime of domestic violence" means an offense that--
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
(B)
(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter [18 USCS §§ 921 et seq.], unless--
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter [18 USCS §§ 921 et seq.] if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

It seems then that if you've did 1203.4 PC expungement you'd be okay (under the final provision which I've italicized and underlined) to possess firearms.

The first phrase of the statute refers to a limiting subparagraph C, but I don't see that anywhere.

However the AG memo that you cite talks about DV convictions with force or attempted force. PC 273.5 under which you were formerly convicted includes an element of injury, so I'd be hard pressed to imagine that it doesn't include an element of force or attempted force. Although, there might be an argument there.

I wonder if the AG is following another section of the code that we don't know about that disqualifies your expunged conviction from possessing firearms. I wonder if there might a discrete (I use that word because I don't know how to spell seperate.) section involving force that the AG thinks disqualifies you. I wonder if you can call them up?

I'm not a lawyer, and for heaven's sake don't construe anything I say as legal advice.

Shotgun Man

11-06-2007, 7:26 PM

Before the I last posted I did not know the OP had learned that the AG was relying on language in 1203.4 in saying that CA did not allow for the expungement exception provided for in federal law.

That's a big deal. Certainly it seems it is worth a court case. I don't think the CA legislature meant to exclude CA expunged misdemeanants from rights under federal law that other state's citizens have... but you never know.

The federal government's strained analysis of the two statutes suggests that it is anti-gun as possible, and this is a republican administration.

Just as an aside, I would like to see a pro-medical marijuana (not for me, for a sick relative) and pro-gun candidate. Either party, I'd vote for him.

FreedomIsNotFree

11-06-2007, 10:09 PM

Dazed..

Have you tried to use the Freedom of Information Act as a means to get your hands on the ATF directive?

Have you spoken to an attorney regarding your case?

If you answered no to either of these, I believe you still have some moves to make.

edwardm

11-07-2007, 6:19 AM

I've found that calling your ATF district/local office and asking to speak to one of their inhouse counsel is often very productive. Even their field agents are willing to answer general questions and provide documentation, so long as you're not asking for legal advice.

Despite ATF being a generally evil entity, there are *some* decent folks who work in the field offices. I would certainly exhaust that avenue. Also, it is possible that ATF is relying on an opinion of the AG, not an internal opinion. I don't have time to search the AG opinions before heading out the door, but they are publicly available.

Dazed..

Have you tried to use the Freedom of Information Act as a means to get your hands on the ATF directive?

Have you spoken to an attorney regarding your case?

If you answered no to either of these, I believe you still have some moves to make.

Smokeybehr

11-08-2007, 12:11 PM

Yep...sounds like the only way you are going to be able to take care of that is to hire a lawyer.

http://www.tmllp.com FTW...

Thanks for being the trailblazer if you go through with this. You'll be helping the thousands of other men and women out there that have been denied their rights due to an illegal ex-post-facto law.

Outlaw Josey Wales

11-08-2007, 12:34 PM

From ATF's FAQ's :

(Q14) Is an individual who has been pardoned, or whose conviction was expunged or set aside, or whose civil rights have been restored, considered convicted of a misdemeanor crime of domestic violence? [Back]

No, as long as the pardon, expungement, or restoration does not expressly provide that the person may not ship, transport, possess, or receive firearms.

tyrist

11-09-2007, 10:07 AM

273.5 PC is a felony. If you were convicted even if expunged it still is a felony conviction I believe.

DazedandConfused

11-09-2007, 10:16 AM

273.5 PC is a felony. If you were convicted even if expunged it still is a felony conviction I believe.

The arrest and conviction referenced in this entire argument was for a misdemeanor crime of domestic violence (MCDV). This argument would not be applicable to a felony conviction of any crime.